Duty to prevent sexual harassment in the workplace

Employers must take reasonable steps to prevent sexual harassment of their staff while they're working for them, including sexual harassment by third parties. This is a preventative duty.

What does preventative duty mean?

It means you must take proactive steps to change any problematic workplace behaviour and eradicate harassment in the workplace.

You will be expected to follow the Equality and Human Rights Commission (EHRC) technical guidance: Sexual harassment and harassment at work.

According to the guidance:

1. You should not wait until an incident of sexual harassment has taken place before taking any action. You need to anticipate scenarios when staff may be subject to sexual harassment in the course of their employment and take reasonable steps to prevent it from happening.

2. Management and senior staff should play an important role in creating respectful workplaces that are free from harassment. They can do so by being role models for respectful behaviour, and visibly promoting a positive and inclusive workplace culture where harassment is taken seriously and not tolerated.

3. If sexual harassment has happened, you should take reasonable steps to stop it from happening again.

Taking effective steps to deal with the harassment after it's occurred, such as an investigation and disciplinary action, won't be enough on its own to avoid liability. But it may help to prove that you've taken your anti-harassment policy seriously and used it effectively when a worker has breached it.

Any remedial action you have previously taken to avoid future acts of harassment (such as improving reporting and investigation processes) will help you to establish that you've taken preventative steps in relation to a current act of harassment.

What are reasonable steps?

There is no set minimum about what you can do to prevent sexual harassment and protect your staff.

Whether a step is reasonable is an objective test about what is reasonable for an employer to do in the circumstances, and so will vary from employer to employer.

You'll have taken all reasonable steps if there are no further steps that you could reasonably be expected to take.

You should also consider what steps you've have taken to date and what further reasonable steps will be practicable for you to take.

When deciding whether a step is reasonable, the guidance states that the following factors may be relevant:

• The size and resources of your business
• The nature of the working environment
• The sector you operate in
• The risks present in the workplace
• The nature of any contact with third parties, for example, type of third party, frequency, environment
• The likely effect of taking a particular step and whether an alternative step could be more effective
• The time, cost and potential disruption of taking a particular step, weighed against the benefit it could achieve. A step that's expensive, time consuming and troublesome to implement will not be a reasonable step to take if it achieves nothing. Conversely, if a step would be effective, then this may outweigh any other negative factors.
• Whether concerns have been raised with you that sexual harassment has taken place (if so, it would likely be reasonable for you to take steps to investigate and ensure it does not happen again)
• Whether you have to comply with any relevant regulatory standards (for example, standards set by the Financial Conduct Authority or General Medical Council)
• Whether the steps you've taken appear to have been effective or ineffective. For example, if a further incident of sexual harassment occurs after you took steps, this may indicate that you should consider extra and/or alternative action.

Note, the guidance makes it clear this is not an exhaustive list and whether a step you take is reasonable will depend on the circumstances of each individual case.

For example, an employer who knows that a worker has previously committed an act of harassment may be required to take specific steps to ensure that they do not do it again in the future.

What you can do

Along with its technical guidance containing practical steps you can take, the EHRC has also published an 8-point plan, as a helpful step-by-step guide to complying with the duty.

The EHRC makes it clear that these steps are not an exhaustive list, and not every step in it may be reasonable for you to do.

However, you should consider doing the following:

Carry out an anonymous staff survey

This can be useful to get as accurate a picture of sexual harassment in the workplace as possible and help identify potential risk areas, both internally and from third parties.

It'll also help you to understand staff perceptions of workplace culture and help monitor the prevalence of sexual harassment in the business.

Perform a risk assessment

This should identify the risk of workers experiencing sexual harassment in the business and implement actions to prevent or minimise it.

Implement a sexual harassment policy

The policy should be clear, effective and followed. It should contain certain information such as:

• a statement about your preventative duty;
• who a complaint should be made to;
• details of a complaints process that will encourage staff to report sexual harassment (including sexual harassment by third parties);
• steps that you'll take to prevent repeat incidents by third parties;
• how you'll deal with incidents by staff; and
• what support will be available to those who made the complaint.

Complaints by staff must be handled in accordance with the policy.

Communicate the policy

You should communicate it to staff regularly (at least annually), such as by internal newsletters, physical or digital noticeboards (intranet), with reminders before key events with higher risks of harassment, such as an office party.

Staff should be aware of how to raise a complaint and the consequences of breaching the policy.

You should also consider communicating it to any third parties your staff may be in contact with.

Continually evaluate the policy

You should assess, on an ongoing basis, how effective the policy is.

You could do this by, for example, keeping a centralised record of complaints (including any informal ones) to a level of detail that allows trends to be analysed.

This could include:

• Date of events
• Areas of business
• Roles of complainant and harasser
• Protected characteristic
• Legal category (such as harassment, sexual harassment)
• Outcome and brief reason for it.

However, you must ensure that the record complies with data protection law .

Provide all staff with regular training

Without some visible training there's little chance of complying with the protective duty.

The training should ensure staff know:

• what each type of harassment is (including third-party harassment);
• what victimisation involves;
• what to do if they experience it; and
• how managers will handle complaints of harassment.

Training should be mandatory and tailored towards the sector that you operate in.

Regularly monitor

You should proactively be aware of what is happening in the workplace.

There may be warning signs that harassment is taking place, beyond informal and formal complaints, such as:

• Regular sickness absences
• Changes in behaviour
• Comments in exit interviews
• Dips in performance
• Avoidance of a certain colleague.